Huon Valley Council v Eaves, Christopher Ronald
[1999] TASSC 14
•19 February 1999
[1999] TASSC 14
PARTIES: HUON VALLEY COUNCIL
v
EAVES, Christopher Ronald
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 48/1998
FCA 49/1998
DELIVERED: 19 February 1999
HEARING DATE/S: 4, 5 November 1998
JUDGMENT OF: Underwood J, Crawford J, Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Huon Valley Council
(Appellant FCA 48/1998;
Respondent FCA 49/1998): P L Jackson, G W Tremayne
Christopher Ronald Eaves
(Respondent FCA 48/1998;
Appellant FCA 49/1998): D J Porter QC, R E Hudson
Solicitors:
Huon Valley Council: Griffits and Jackson
Christopher Ronald Eaves: Butler, McIntyre & Butler
Judgment category classification:
Judgment ID Number: [1999] TASSC 14
Number of pages: 20
Serial No 14/1999
File Nos FCA 48/1998FCA 49/1998
HUON VALLEY COUNCIL v CHRISTOPHER RONALD EAVES
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
SLICER J
19 February 1999
Order of the Court
FCA 48/1998
Appeal allowed.
Judgment for the respondent; varied by substituting the sum of $332,985.50 for the sum of $365,489.97.
FCA 49/1998
Appeal dismissed.
Serial No 14/1999
File NoS FCA 48/1998FCA 49/1998
HUON VALLEY COUNCIL v CHRISTOPHER RONALD EAVES
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
19 February 1999
I have had the advantage of reading the reasons for judgment of Crawford J. I agree with him and with the order that he proposes be made with respect to these appeals.
File Nos FCA 48/1998
FCA 49/1998
HUON VALLEY COUNCIL v CHRISTOPHER RONALD EAVES
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
19 February 1999
Both parties appealed but for convenience I will refer to the Council as the appellant and Mr Eaves as the respondent. The respondent successfully sued his employer, the appellant, for damages for personal injuries suffered by him in the course of his employment on 18 June 1992. After a trial before a judge without a jury, the appellant was found liable to the respondent in negligence, the latter held to be 15 per cent at fault by way of contributory negligence. Damages were assessed and judgment was entered for the respondent against the appellant for $365,489.97. The appellant has appealed against the primary finding of liability, the apportionment of contributory negligence and the assessment of damages. The respondent has also appealed against the apportionment of contributory negligence.
The respondent was employed by the appellant as a plant operator and sustained injuries to his head and cervical spine while operating a backhoe loader. Earlier he had used the backhoe to excavate around a water main in Helen Street, Ranelagh. He then drove the machine to Agnes Street, to go to a Council sand pit about 100 metres off Agnes Street across an open section of ground, the surface of which was rough and uneven. He had his left hand on the steering wheel and his right arm was resting on the right hand side armrest of the adjustable driver's seat. When crossing the open section of ground, without warning the driver's seat moved backwards and in attempting to maintain control of the vehicle, he reached forward to take hold of the steering wheel with both hands. He does not remember how he came to sustain his injuries, but it was found that in the course of his attempt to take hold of the steering wheel, he touched a lever adjacent to the driver's seat which operated the hydraulically controlled loading bucket at the front of the vehicle. That in turn caused the bucket to be lowered and driven into the ground, and an immediate result of that was that the machine came to an abrupt stop. The respondent was not wearing the seat belt which was provided for the operator. Being unrestrained, he was flung forward and his forehead hit the windscreen with considerable force and his left knee struck the dashboard.
The driving seat had a maximum fore and aft movement of fifteen centimetres. It was capable of being locked in varying positions along this distance, in much the same way as the seat of most family motor cars can be moved back and forth. If moved fully to the rear, the seat could then be rotated to face the rear by swinging in a 180º arc. When facing in such a rearward position, the backhoe function of the machine could be utilised for digging operations. When travelling along a road or using the loading bucket at the front of the machine, the driver's seat would be used towards the forward position, which was the position in which it was in at the time of the respondent's accident. It was his practice to adjust the seat so that it was about five centimetres from its foremost extremity when driving the machine from place to place, or operating the loading bucket.
There was evidence, particularly from the respondent, that he had previously experienced two kinds of problems with the sliding seat. Sometimes it would move back suddenly for no apparent reason and on other occasions, when he was attempting to move it backwards, it would stick or jam on its tracks, and considerable force and wriggling of the seat would be required before it could be moved from that position. Situations in which the seat moved back suddenly, were experienced by the respondent on about six or eight occasions before the accident. Upon the basis of the evidence of an automotive engineer, Mr David Cooper, and a consulting engineer, Mr Mark Dohrmann, the learned trial judge concluded that the likely cause of both problems was the presence of some unascertained foreign object or objects in the track mechanism, which caused the track to jam or release intermittently.
The learned trial judge concluded that the strength of the respondent's case depended upon a finding that the appropriate officers of the appellant Council, were or should have been aware of, the defective seat mechanism, which should have been rectified prior to the date of the accident. It was the respondent's case that the appellant should have been aware of the seat malfunction through complaints made about it by the respondent to the assistant works supervisor, Mr Gary Coombe, and the Council maintenance mechanic, Mr Peter Raymond. His Honour regarded as an indispensable part of the respondent's case the need to show that not only did the seat malfunction as described at the time of the accident, but that the problem was part of an ongoing intermittent fault which had manifested itself without warning from time to time. If the respondent could show that his employer was aware of the problem, in the sense that he had reported it in accordance with the system then in operation to appropriate officers of the appellant Council, and that he was in a sense obliged to continue working on the machine without there being any or any effective investigation of his complaints having been undertaken before the accident then, according to his Honour, he was entitled to succeed.
The backhoe was new when purchased by the appellant in December 1991. On 31 March 1992 a 250 hour service was performed on it, during which the adjustment and rotation of the driving seat was checked without any defects in its operation being found. The fitter who performed the service believed that he lubricated the seat adjustment mechanism at that time. To his knowledge there had been no operator complaint of seat malfunction before then.
The respondent was first employed by the appellant in June 1991. The learned judge found that it was in about February 1992 that the respondent was offered the job of backhoe operator by the works supervisor. However it was common ground on the hearing of the appeal that the finding was erroneous and that he commenced to operate the machine on 28 April 1992. He was initially instructed in the operation of the machine over a period of three or four weeks, but he had some prior experience using a backhoe and was generally competent in its operation at the time of the accident. During the instruction period he experienced no malfunction of the driving seat, but after three or four weeks problems began to occur. It is to be observed therefore that those problems were observed over a period of time which extended for no longer than about one month, having regard to the fact that the accident occurred a little over seven weeks after he first commenced to operate the backhoe.
As already mentioned, the respondent experienced the seat moving back suddenly on six or eight occasions prior to the accident. He also experienced the problem of the seat sticking or jamming on its tracks. His evidence, which was accepted by the learned judge, was that he complained of these problems to both his immediate supervisor who was the assistant works supervisor, Mr Gary Coombe, and the Council maintenance mechanic, Mr Peter Raymond. At the time he first mentioned the matter to Mr Coombe he had only experienced the sudden backward moving difficulty, but thereafter he had further occasion to speak to Mr Coombe about this problem as well as the jamming problem which had also manifested itself on three or four occasions. He spoke to Mr Coombe about the problems probably three or four times before the day of the accident. Mr Coombe suggested to the respondent that he should report these matters to Mr Raymond. It was the evidence of Mr Coombe that he had a vague recollection of the respondent mentioning problems with the seat on a couple of occasions before the day of the accident. Mr Coombe also gave evidence of having seen the respondent experiencing difficulty with the movement of the seat on one prior occasion. He said that there was not in place any formal procedure or system with regard to the reporting of mechanical problems, but what he did was encourage individual operators to go direct to the mechanic.
The respondent spoke to Mr Raymond on two occasions, the first being approximately two weeks prior to the accident. He described both problems to Mr Raymond on that occasion. After experiencing continuing problems with the seat he spoke again to Mr Raymond on the day of the 500 hour service. There was a dispute on the evidence as to when that was, either one or two days before the accident or two or three weeks before. Notwithstanding that the learned judge did not think it necessary to resolve the dispute, he concluded that the preponderance of the evidence favoured that it was on the day before the accident. It was the respondent's evidence that he asked Mr Raymond to "look at the problem or try and rectify the problem". On one occasion when the matter was mentioned to Mr Coombe or Mr Raymond (he could not recall which), a comment was made to him that dirt or grit or something in the tracks of the seat may have been causing the problem. On the day of the 500 hour service, the respondent helped Mr Raymond from time to time with the service, but he did not see Mr Raymond working on the seat, nor did he ask whether Mr Raymond had been able to locate the fault or faults in the seat mechanism. The respondent made no inspection of the seat mechanism for himself to see if he could determine what was wrong with it, nor did he test the mechanism to see if it was working properly or malfunctioning.
There was also evidence of another Council employee, Mr Tony Matson, that he "vaguely" remembered having trouble with the seat of the backhoe on rare occasions when he had operated it prior to the accident. That trouble amounted to difficulty in sliding the seat into the position where he wanted it, on a couple of occasions. He did not report the problem. There was also evidence from the backhoe's original operator, Mr Thorp, that up until 28 April 1992 he had experienced no problems with the sliding mechanism.
On the day of the accident the respondent had been using the backhoe to excavate around a water main in Helen Street. Mr Coombe came to the site during the day. Before his visit, the respondent had experienced problems with the seat sticking or jamming during the course of his work. He had been unable to move the seat into the fully backward position, and thus was unable to rotate it to get it into the backhoe operating position. This problem had been observed by two other Council employees, Mr Terry Paul and Mr Tony Matson. It was Mr Paul's evidence that the respondent was having difficulties with the seat about ten or fifteen minutes before he left to obtain a load of sand from the sandpit. He saw the respondent "pushing and pulling and trying to wriggle the seat into position" and "pulling on the levers trying to get it to move". Mr Matson was a leading hand at the time, and he had a "vague" recollection "to do with the seat, about trying to get it to click in or move to the position" the respondent wanted. Before the respondent drove off towards the sandpit in Agnes Street he complained to Mr Coombe that he was still having problems with the seat, but Mr Coombe's only response was to say, "Sorry Chris I have to go", because he was due to attend to some business in Hobart at the time. A short time later, as the respondent drove from Helen Street to Agnes Street, the vehicle behaved in a normal manner. The bucket was approximately 400 millimetres above the ground, which was the position in which it was usually placed when the vehicle was travelling from one point to another. The vehicle was travelling at about fifteen to twenty kilometres an hour in fourth gear, and had proceeded approximately thirty metres from Agnes Street along the track towards the sandpit when the seat suddenly shot backwards resulting in the respondent's injuries.
The learned trial judge found that Mr Raymond was notified by the respondent of the problems with the seat on at least two occasions prior to the accident, and that Mr Raymond failed to take "appropriate steps to rectify the same". His Honour did not identify what would have amounted to "appropriate steps" by Mr Raymond. He concluded that the likely cause of both of the problems with the seat was the presence of some unascertained foreign object or objects in the track mechanism, which caused the track to jam or release intermittently as described.
The learned trial judge said that it was beyond argument that the sudden release and sharp backward movement of the seat, when the backhoe was travelling from one place to another, would be likely to cause a loss of control by the operator with consequent injury to the operator as well as other people who might be in the vicinity. Such a loss of control could result from the operator losing his grip on the steering wheel, his foot slipping off the brake or on to the accelerator pedal or in the very way it happened here, viz, by knocking the bucket control lever causing the bucket to fall and act as a sudden brake on the forward progress of the vehicle. His Honour held that the accident was foreseeable and "a consequence of the defendant's breach of duty to the plaintiff" which plainly caused the respondent's injuries. It was the appellant's responsibility, as the respondent's employer, to assess the potentially serious consequences of the problem. His Honour found that "had the matter been considered responsibly it should have been apparent that a sudden lack of seating stability could cause serious difficulties for an operator attempting to control such a machine even though the seat may only move a few inches during such an occurrence". His Honour also found that the respondent's system of reporting and attending to complaints about plant and equipment "was casual and inefficient" and "allowed problems of this kind to go unchecked and uncorrected".
Cause of the defective seat
The learned trial judge did not express as a specific finding that the cause of the seat suddenly sliding backwards in the course of the events of the accident was the presence of some unascertained foreign object or objects in the track mechanism. However such a finding may be inferred, having particular regard to the finding that the cause of the problems with the seat which had been experienced was exactly that and to his Honour's statement that an indispensable part of the respondent's case was the need to show that not only did the seat malfunction at the time of the accident, but that the problem was part of an ongoing intermittent fault which had manifested itself without warning from time to time. Parts of ground 1 of the appeal by the appellant attack the finding that a foreign object or objects in the track mechanism was the cause of what occurred before and at the time of the accident. I refer to the following paragraphs of the ground:
"1 His Honour erred in holding that the Appellant was negligent.
Particulars
…
(c) His Honour failed to make any or adequate findings of fact to justify his conclusion:
(i) that the likely cause of the Respondent's problems with the seat was the presence of some unascertained foreign object or objects in the track mechanism;
(ii) the presence of some unascertained foreign object or objects in the mechanism could cause the track to jam or release.
(d) His Honour failed to take account of the lack of evidence as to how the presence of some unascertained foreign object could cause the track to jam or release intermittently.
(e) His Honour failed to take into account sufficiently or at all the evidence that the seat was found to be working properly immediately before and after the accident.
(f) His Honour failed to take into account the lack of any evidence that there was any foreign object in the mechanism or that the mechanism itself was in any way defective."
There was ample evidence establishing that a foreign object or objects were the likely cause of all the problems experienced by the respondent. The evidence established that there was nothing wrong with the mechanism of the seat in itself and that it had continued to be used, up until the date of the trial, without any need for replacement or modification. Notwithstanding the paragraphs of ground 1 which are set out above, it was conceded by counsel for the appellant that the likely cause of the problems, and the accident itself, was the presence of some unascertained dirt, grit, pebble or other foreign object in the track mechanism of the seat.
A foreseeable risk of injury
The following paragraphs of ground 1 concern the notice given by the respondent to Mr Coombe and Mr Raymond about the problems he was experiencing with the seat and whether the giving of that notice gave rise to a foreseeable risk of injury:
"(b)His Honour erred in finding that comments made by the Respondent to Mr Coombes [sic] and Mr Raymond before the date of his accident concerning the seat were sufficient to put the Appellant on notice of a risk of injury to the Respondent so as to call for some response from the Appellant.
…
(g)His Honour erred in failing to give any or sufficient weight to the evidence and to His Honour's findings that:
(i) the problems experienced by the Respondent were intermittent;
…
(iv) the employer had limited notice of what were only minor problems;
(v) the problems complained of did not affect the ordinary operation of the machine and caused nothing more than frustration and annoyance to the operator.
…
(k)His Honour should have found that:
(i) the history of problems with the seat prior to the Respondent's accident, so far as it was made known to the Appellant, was not such as to put the Appellant on notice of a risk of injury to the Respondent that called for any particular response from the Appellant;"
It was submitted to the learned trial judge by counsel for the defence that putting the respondent's case at its strongest, the appellant had at the most three to four weeks notice of what amounted to a minor problem with the seat, a problem that was intermittent and which did not appear to unduly affect the ordinary operation of the machine and which merely caused frustration or annoyance to its operator. The learned trial judge essentially agreed but added that it was not the respondent's responsibility to assess the potentially serious consequences of the problem. It was the appellant's responsibility to do so and his Honour found that had the matter been considered responsibly, it should have been apparent that a sudden lack of seating stability could cause serious difficulties for an operator attempting to control the machine.
It was submitted to this Court by the appellant's counsel that what was reported by the respondent to Mr Coombe and Mr Raymond concerning the problems he was experiencing with the seat, ought not to have been found to be sufficient to put the appellant's responsible officers on notice that something needed to be done about the problems. It was submitted that all that was reported was that he was experiencing with the seat a problem, the nature of which was minor and frustrating, an operational nuisance, and not one giving rise to a foreseeable risk of injury.
The learned judge accepted what the respondent said in evidence about his complaints to Mr Coombe and Mr Raymond. That evidence needs to be considered. When he first spoke to Mr Coombe the respondent had only experienced the seat unexpectedly moving backwards and so he only reported that problem to Mr Coombe. Between then and the day of the accident he spoke to Mr Coombe on three or four occasions about the problems he was continuing to experience with the seat, telling him that he was still having the problem of it going backwards as first reported and that he was also experiencing a problem with the seat sticking or jamming. Mr Coombe was his immediate supervisor and the assistant work supervisor. He told the respondent, in accordance with the system of work that was in place, to take his problems up with the Council's mechanic, Mr Raymond. The respondent did that, on two occasions speaking to Mr Raymond, telling him about the problems he was having with the seat, about its unpredictable sliding back and also its sticking or jamming. On the first occasion he reported to Mr Raymond only the unpredictable movement in the seat. One or two days before the accident, when Mr Raymond carried out the 500 hour service on the backhoe, the respondent told him that morning that he was continuing to have both of the problems with the seat. It was the respondent's evidence that he "asked him would he look at the problem or try and rectify the problem." Even if he had not made that request, it is reasonable to infer that the respondent was not only reporting the problems but requesting that steps be taken to rectify them. To the best of his recollection the respondent was not experiencing any other problem with the backhoe at the time and he cannot recall complaining to Mr Raymond about any other problem.
It is clear from that evidence that in accordance with the system of work in place for dealing with mechanical breakdowns and other mechanical problems, the respondent reported to his superior and to the responsible mechanic that he had been experiencing sudden and unpredictable sliding back of the seat. He could do no more about the matter in accordance with the system of work which was in place. I can detect no error in the conclusion of the learned trial judge that it ought to have been apparent to the persons to whom the respondent had spoken, that there had been reported to them a problem which could cause the operator serious difficulties in controlling the machine and which gave rise to a foreseeable risk of injury. As was said in evidence by an automotive engineer, Mr David Cooper, "seats moving inadvertently is a very nasty practice" and should be investigated "with the utmost priority, we would certainly need to find the cause of the problem and rectify it before the vehicle was used again". Mr Cooper added that "quite some injuries have been caused by such movement in seats". I add that there was nothing in the reports by the respondent which would have led Mr Coombe or Mr Raymond to conclude that the problems amounted to no more than frustration and annoyance for the operator and that there was no risk of injury. In conclusion on this aspect of the appeal, it is appropriate to record that Mr Raymond agreed in evidence that any complaint that the seat was malfunctioning was a serious matter which should be attended to promptly.
Breach of a duty of care
The following paragraphs of ground 1 of the appellant's notice of appeal concern the duty of care owed by the appellant to the respondent and whether the appellant, by its employees, breached that duty of care by failing to respond appropriately to the foreseeable risk of injury which had arisen:
"(a)His Honour found that the Appellant was in breach of its duty of care to the Respondent without identifying what that breach was and how it was causative of the Respondent's injuries.
…
(h)His Honour failed to make any finding as to what the Appellant could have done prior to the date of the Respondent's accident that would have prevented recurrence of the problems experienced by the Respondent with the seat mechanism.
…
(j)Having concluded that it was important for there to be a finding that the Appellant was or should have been aware of the defective seat mechanism and that it should have been rectified prior to the date of the Respondent's accident, His Honour failed to:
(i) take into account adequately or at all the lack of any evidence to show that the seat mechanism was defective;
(ii) take into account the evidence that suggested there was no defect in the seat mechanism;
(iii) identify what was defective about the seat mechanism and the manner in which the Appellant could have rectified it prior to the Respondent's accident."
In deciding whether there was a breach of the duty of care, the learned trial judge was obliged, in accordance with the principles stated by Mason J in Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47 - 48, to first ask himself whether a reasonable man in the appellant's position would have foreseen that its conduct involved a risk of injury to the respondent or to a class of persons including the respondent. If the answer was in the affirmative, then the next step for the learned judge was to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the appellant may have had.
The learned trial judge specifically found that "the accident was foreseeable and it was a consequence of the defendant's breach of duty to the plaintiff", without articulating what amounted to the breach of duty. However a consideration of other passages in his Honour's reasons for judgment reveal what the finding in that regard must have been, keeping in mind that the particulars of negligence as pleaded by the respondent, alleged that the breach arose because the appellant:
(a)failed to service or maintain the seat mechanism of the backhoe adequately or at all;
(b)failed to inspect the seat mechanism to ensure that it was in a safe and proper operating order;
(c)failed to heed the respondent's complaints and/or concerns in relation to the operation and/or function and safety of the seat mechanism;
(d)failed to remedy the seat mechanism malfunction;
(e)failed to provide an alternative or replacement backhoe for the plaintiff to carry out his duties; and
(f)permitted the plaintiff to drive the backhoe when it knew or ought to have known that the seat mechanism was not in a safe and proper operating order.
By the appellant's answers to interrogatories it was established that at no material time prior to the accident did the appellant's servants or agents service, test, inspect, check or do anything else in relation to the seat and its sliding function and mechanism. In other words, it is clear that nothing whatever was done by the appellant's employees in response to the foreseeable risk of injury which had arisen. That was in breach of the appellant's system of work which, according to its answers to interrogatories, included that upon a backhoe operator notifying the mechanic or the works supervisor of any malfunction of the machine or any need for repairs or servicing, the mechanic would investigate the matter and correct any malfunction.
In my opinion the key to the finding of the learned judge concerning the breach of the duty of care is to be found in the following passages of his Honour's reasons:
"If the plaintiff can show that his employers were aware of the problem in the sense that he had reported it in accordance with the system then in operation to appropriate officers of the defendant Council, and that he was obliged to continue working on the machine without any or any effective investigation of his complaints having been undertaken before 18 June 1992, then he is entitled to succeed in these proceedings subject only to any appropriate reduction in damages for his contributory negligence."
Later his Honour referred to the appellant's system of reporting and attending to complaints about plant and equipment as "casual and inefficient" and "allowed problems of this kind to go unchecked and uncorrected". Those comments were immediately followed by his Honour's statement that "there is no guarantee that a proper and complete inspection of the mechanism prior to the accident would have identified the precise flaw or flaws in its mechanical operation". In the next paragraph of the reasons his Honour found that the likely cause of the problems with the seat "was the presence of some unascertained foreign object or objects in the track mechanism, which caused the track to jam or release intermittently as described", and his Honour then held that it had been the appellant's responsibility "to assess the potentially serious consequences" of the problem.
It may be inferred from those passages that the learned trial judge concluded that the appellant breached the duty of care it owed to the respondent by failing to effectively investigate and assess the latter's complaints and by permitting him to drive the backhoe when it knew or ought to have known that the seat was not in a safe and proper operating order. What might have been done by Mr Raymond in the course of an investigation in response to the complaints is illustrated by what was done concerning the seat on dates after the accident, as appears from the evidence of Mr Ian Holloway and Mr Scott Schreck. Their evidence conflicted with that of Mr Raymond, but the learned trial judge did not accept Mr Raymond's evidence about these matters. Mr Holloway's evidence was that on the morning following the accident he saw the seat on a table in a crib room. It was being inspected by Mr Raymond who was checking the operation of the fore and aft sliding mechanism on the base of the seat. The teeth of the slides were not engaging with the corresponding notches to hold it in a set position, but the sliding mechanism itself appeared to be moving freely. Mr Raymond used a pressure pack of CRC lubricant to spray that part of the mechanism which was failing to engage. He then retested the slide and it appeared to function correctly. Mr Schreck was employed by the appellant as a truck driver and he drove the backhoe on a few occasions after the respondent's accident and he was its full time operator for a period of about three months from December 1992. His evidence was that if he stopped the machine on a steep hill and applied the handbrake, or if the machine was traversing rough ground, the seat was prone to slide backwards a short distance. He complained of this to Mr Raymond and they decided to lubricate the seat. Mr Schreck applied CRC as the lubricant and that rectified the problem for a week. There was also evidence from Mr Raymond that in August 1995 the seat jammed and could not be moved either backwards or forwards. On inspection he found that there was dirt in the tracks so he washed them out with petrol and reinstalled them and thereafter the seat functioned correctly. Those were the kinds of things that could have been done by Mr Raymond in response to the complaints of the respondent. They did not involve expense and were not difficult or inconvenient to perform. They were cheap, simple and easy methods of responding to the foreseeable risk of injury which had arisen. A failure to do anything in response to that risk and permitting the respondent to continue to drive the backhoe was plainly a breach of the duty owed by the appellant to the respondent. The fact that the seat mechanism itself was not defective and that the cause of the problem was the presence of a foreign object or objects, only serves to illustrate what a simple task it was for a mechanic to respond to the problem. The learned trial judge was correct to find that the appellant breached its duty of care to the respondent.
The breach caused the injuries
The following paragraphs of ground 1 concern the question of causation, that is to say whether the appellant's breach of duty caused the respondent's injuries:
"(a)His Honour found that the Appellant was in breach of its duty of care to the Respondent without identifying what that breach was and how it was causative of the Respondent's injuries.
…
(g)His Honour erred in failing to give any or sufficient weight to the evidence and to His Honour's findings that:
…
(ii) if the likely cause of the problems experienced by the Respondent was the presence of some unascertained foreign object or objects in the track mechanism, such object or objects may not have been present in the mechanism at all times;
(iii) a proper and complete inspection of the mechanism prior to the accident would not necessarily have identified the precise flaw or flaws in its mechanical operation;
…
(h)His Honour failed to make any finding as to what the Appellant could have done prior to the date of the Respondent's accident that would have prevented recurrence of the problems experienced by the Respondent with the seat mechanism.
(i)His Honour failed to find that the Appellant's failure to inspect the seat before the accident was not causative of the accident and the Respondent's injuries.
…
(k)His Honour should have found that:
…
(ii) an inspection of the seat mechanism before the Respondent's accident would not have disclosed to the Appellant any rectifiable defect or condition in the mechanism or have resulted in any repair, maintenance or alteration of the mechanism;
(iii) an inspection of the seat mechanism before the Respondent's accident would not have avoided the accident."
The learned trial judge found that "there is no guarantee that a proper and complete inspection of the mechanism prior to the accident would have identified the precise flaw or flaws in its mechanical operation". That statement did not purport to be a finding on the balance of probabilities. It arose out of the evidence of the automotive engineer, Mr David Cooper. He gave evidence that about 95 per cent of all cases of track jamming can be attributed to the presence of foreign objects. He said that the objects can move about within the mechanism of the seat and as a result the problems, consequent upon the presence of the objects, may not necessarily be present at all times. Mr Cooper thought that similar causes could be attributed to the seat unexpectedly moving backwards. If cleaning with wire probes, kerosene or compressed air is unable to overcome the problem the only solution may be to replace the tracks, he said. The evidence reveals that in this case it did not prove necessary to replace the tracks and that for most of the time since the respondent's accident the same problem has not manifested itself.
In my opinion, the finding that the respondent's injuries were caused by the appellant's breach of duty was correct on the evidence. On the balance of probabilities, permitting the respondent to drive the backhoe without any investigation of his complaints caused his injuries. The foreseeable risk which had arisen, manifested itself as a result. Further, it is more likely than not that if Mr Raymond had investigated the cause of the problem, cleaned out any foreign objects he found and applied a lubricant, on the day the 500 hour service was carried out, the problem with the seat would not have manifested itself again so quickly and the injuries would not have been suffered by the respondent.
Contributory negligence
The learned trial judge found the respondent 15 per cent contributorily negligent because of his failure to wear the lap type seat belt which was fitted to the backhoe. The appellant submits that the percentage was too little. The only ground of appeal maintained by the respondent is that it was erroneous to find the respondent contributorily negligent to the extent of 15 per cent or at all.
It was the evidence of the respondent that he was aware that the seat belt was fitted for use by the operator. He said that the belt had always been fastened behind the seat, and neither he nor any other operator whom he had seen using the backhoe, had ever worn the seat belt for any purpose, whether driving the backhoe along a road or operating either the bucket or the backhoe. The learned judge appreciated that when using the machine in a stationary position for backhoe operations, an operator might reasonably consider that the seat belt was not required. However at the time of the accident, the respondent was travelling from one place to another and part of the journey was along public streets. When driving his own private motor vehicle he always used a seat belt and his Honour commented that he really needed no instruction to use a seat belt when using a motor vehicle upon a public road. For these reasons his Honour concluded that it would be proper to make a finding of contributory negligence against the respondent, if it could be found on the balance of probabilities that the respondent's injuries could have been avoided or lessened by use of the seat belt.
So far as concerns causation, the learned trial judge referred to evidence suggesting that the respondent's forehead hit the windscreen with considerable force. Both the inner and outer panes of the laminated windscreen were damaged. He was heavily dazed and only came to his senses when he was outside the backhoe. The evidence of a consultant neurosurgeon, Mr A W M Hunn, caused the learned trial judge to find that the impact between the respondent's head and the windscreen directly caused the respondent's closed head injury and resultant disabilities, although the cervical injury suffered by him might equally have been experienced whether or not that impact occurred. From a consideration of the dimensions of the cab the learned trial judge found that had the respondent been wearing the seat belt, even if it had been fastened less snuggly than desirable, his head injury would have been less severe than it was, and the same inference arose more strongly in relation to the knee injury. His Honour concluded that the respondent's failure to wear the seat belt contributed to a substantial degree to the injuries sustained by him.
All of the findings to which I have referred were supported by the evidence and are not challenged by a ground of appeal. In assessing the extent to which the respondent's damages should be reduced for his contributory negligence, the learned trial judge found that the appellant and its supervisors were aware that it was the practice of operators not to use the seat belt while driving the backhoe, and his Honour referred to the practice being condoned or tacitly approved by the employer. The appellant attacks these findings, but clearly they should have been made on the unchallenged evidence of the respondent about his lack of use of the seat belt and his observations of others failing to use it. There was also evidence from Mr Anthony Matson which supported the findings. There was no evidence to the contrary.
Ultimately the appellant's argument was that 15 per cent for contributory negligence was not enough and for the respondent it was argued that it was too much. My conclusion is that the learned trial judge has not been shown to be in error when he applied that percentage. The assessment of the degree of fault is different in essence from a mere finding of fact in the ordinary sense. "It is a question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations: it involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason … that the courts have warned an appellate court against interfering, save in very exceptional circumstances, with the judge's apportionment." British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. A finding of contributory negligence is not lightly reviewed. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532. In my view the respondent had to bear some share of the fault for his injuries, having regard to the fact that he knew full well of the need for the use of a safety belt on public roads. However his fault was far less than that of his employer, which did nothing about the practice of operators to not use seat belts. I can find no error in the application of 15 per cent.
Damages
Lost earning capacity
For the respondent's loss of earning capacity in the future the learned trial judge assessed $255,000 by way of damages. In ground 3 of the appellant's notice of appeal the following paragraphs attack that assessment:
"(a)Having found there was no firm basis for inferring that the Respondent would have been promoted, His Honour used the chance of promotion as a factor to offset any reduction in the award of damages for the vicissitudes of life.
(b)His Honour failed to take into account the lack of any evidence to support the inference that the Respondent quite likely would have sought a more remunerative position.
(c)His Honour erred in concluding that the favourable and unfavourable contingency factors cancel each other out.
(d)His Honour erred in failing to reduce the sum awarded for future loss to take account of the vicissitudes of life in general and the prospect that the Respondent would not work until the age of 65 in particular."
The respondent was born on 1 April 1957 and was forty-one years of age at the time of judgment in May 1998. The learned trial judge found that as a result of the injuries suffered by him in the accident, he will never be able to work again.
He left high school in 1972 shortly before his sixteenth birthday, having gained a School's Board Certificate, his only formal education qualification. He first worked for four or five months for an abalone diver. He then did labouring work on a sugar cane railway for about nine months, and for a short time worked in a bakery and had driving jobs delivering milk and mail. He did labouring work for a pipe company for four or five months, road maintenance work for the Forestry Commission for eight to ten months and tree felling for the Hydro Electric Commission for a few months. He then did a milk and bread delivery run for about eighteen months in 1976 to 1977. He did farm work for about twelve months and in 1978 went to work for his brother-in-law who was an abalone diver, for about two years. For the next three years he worked for the Dover RSL Club, firstly as the second steward and then as the head steward. In about 1984 he returned to fishing work with his brother-in-law for another three years and in about 1986 commenced to work for Tassal Ltd as a general farmhand on a fish farm south of Dover. His evidence was that after about twelve months he became the farm manager in charge of the general running of two fish farms, the work including ordering, staffing, rostering, keeping the books and daily records and organising the harvest of fish in the evenings. While employed by Tassal he attended some seminars of a managerial kind over some days. His evidence was vague about that.
In about October 1990 the respondent decided to leave his employment with Tassal. His evidence of his reasons for doing so was that he was not very happy with the way things were going at the time, the company being restructured because of a merger, and he and his wife had plans to move a little closer to Hobart where their children attended school. In cross-examination he agreed that another reason for leaving Tassal was that he wanted more reasonable working hours. After a discussion with his wife and family he resigned as farm manager, but remained in employment by Tassal until about February or March 1991 at a cool store in Geeveston. He then left Tassal's employment. After a gap of three months his next full time employment commenced in June 1991 when he became employed as a plant operator by the appellant. Between March and June he did a little bit of work on his brother-in-law's farm.
His evidence of his reasons for working for the appellant as a plant operator was that it was something he liked doing, driving machinery, trucks and vehicles, and the place of work was convenient for it was between Dover and Hobart, his children attending school at Hobart and his wife working at Dover. Both before and after the accident she was in permanent employment for thirty hours a week as a teacher's aide. When working for the appellant, the respondent operated a heavy vibrating roller and from time to time the backhoe and light trucks. At the end of April 1992 he became the operator of the backhoe.
Counsel for the appellant submitted to the learned trial judge that the respondent had little apparent need to work until he was sixty or sixty-five years of age. Counsel pointed to the fact that at the time of the accident the respondent was in a sound financial position with a home and land at Dover which he used for weekend recreational pursuits, both of which were mortgage free. His wife had worked for some time. The learned trial judge regarded counsel's arguments as "completely unconvincing". His Honour said that the respondent was a man who took pride in his income earning capacities and his role within the family. Notwithstanding that the family finances were soundly managed, the respondent's income was "not of generous proportions" and the learned trial judge found that in all probability he would have continued to work until the normal retirement age of sixty-five years, if the accident had not occurred. His Honour said that he saw "absolutely no reason for concluding that the plaintiff would have sought early retirement or redundancy before reaching the age of sixty-five years given his drive and versatility and in particular his need to control his own destiny, as demonstrated by his personality before the accident". His Honour thought "it considerably more likely than not that he would have continued in paid employment until his sixty-fifth birthday".
Although his job with the appellant had involved taking a reduction in income when compared with his income from Tassal, the respondent's evidence was that he had envisaged staying as a full time council employee, although perhaps at some later date he would have considered moving on if a suitable position were to be offered. He was described by his immediate supervisor, Mr Coombe, as a very capable worker. He was obviously well liked and impressed people with his temperament and attitude to work. The learned trial judge found that there was no reason to suppose that his employment by the appellant would not have continued until the time of judgment. It was submitted by his counsel that he would have progressed from grade 3C level to grade 4B level of remuneration by the time of judgment. His Honour regarded that as "certainly a possibility" but saw no firm basis from inferring it and damages for loss of earning capacity to the date of judgment were assessed upon the basis that he would have remained at grade 3C level.
At the time of the trial the net weekly wage applicable to the respondent's level of employment at the time of the accident, which was grade 3C level, was $409.26. Using the 7 per cent discount tables, counsel for the respondent calculated, almost three months before the date of judgment, that a loss of $409.26 per week to the age of sixty-five equated to $253,413.79. If the respondent was employed at the grade 4B level the then current weekly wage would have been $423.40 net and the loss would have equated to $262,169.28. The learned trial judge said that against the prospect of future promotion or more highly remunerated employment in another job there had to be balanced the so called vicissitudes of life. The respondent was an active man and engaged in some activities which were not free from danger, such as scuba diving. His Honour thought that the favourable and unfavourable contingency factors virtually cancelled each other out and he allowed for loss of future earning capacity $255,000, having taken into account that the delay between calculation of counsel's figures and judgment had resulted in an increment of some $5,300 net to the amount payable for past loss of earning capacity.
The finding of the learned trial judge that, as a result of the injuries, the respondent will never be able to work again is not directly attacked by the grounds of appeal, although the appellant's counsel submitted that the finding was erroneous and that there is a chance that at some time in the future the respondent may be able to earn income in some form of employment, perhaps clerical work. Although on the evidence it might be said that there is a possibility that the respondent might one day be able to earn income from some form of work, I think nevertheless that the finding was essentially a correct one and that no error has been established. However it is also my conclusion that the assessment of $255,000 for loss of future earning capacity was excessive because of errors made by the learned judge.
The assessed figure of $255,000 was slightly more than the sum appropriate for a total loss of income at a level equivalent for the job the respondent had at the time of the accident, and which it was his intention to continue, until he reaches sixty-five years of age, without reduction for the contingency of unemployment during that period for a variety of possible reasons such as redundancy or resignation (he had resigned and been out of full time work for three months only a year before the accident), sickness, injury, early retirement and death. His industrial record was a sound one but it displayed that he had frequently changed his employment. Although he had earned more at Tassal than he was earning with the appellant, he had chosen to give up his job with Tassal and there is no evidence that he had ever given up one job in favour of another so that he could earn a higher income. The finding of the learned trial judge that it was likely that he would have sought employment with a better remuneration in future years, was not supported by the evidence at all. The respondent's evidence was that it was his intention at the time of the accident to remain in his current employment and he gave no indication of a desire to increase his income, either by promotion or by seeking alternative employment.
The application of the weekly figures of $409.26 and $423.40 assisted the learned trial judge to arrive at his assessment under this heading of damage, but it should not be thought that by referring to the figures his Honour thereby found as a fact that the respondent would earn a weekly sum in the vicinity of, or equivalent to, those amounts without interruption until the respondent's sixty-fifth birthday. What his Honour did was use as a yard stick the equivalent weekly rate of earnings for the work in which the respondent was employed at the time of the accident, and a slightly higher rate having regard to the possibility that he might have been promoted. Then his Honour considered the possibility that the respondent might not be employed or earn income at about those levels between the date of judgment and his sixty-fifth birthday and determined to totally discount the value of that possibility against the prospect, which his Honour erroneously regarded as likely instead of a mere possibility, that the respondent would earn at a higher rate of remuneration because of promotion or change of employment. The assessed figure of $255,000 was erroneous as a result.
Having particular regard to the level of the respondent's income at the time of the accident, the possibility (but not probability) that he might at some time in the future have earned at a higher rate of income and making due allowance for the vicissitudes of life which might have resulted in the respondent not being in full time work without interruption until the age of sixty-five years, $220,000 would in my view be more appropriate compensation for the respondent's loss of future earning capacity.
Future cost of medical care
The learned trial judge assessed as part of the damages $20,000 for the cost of future consultations with a psychologist and a further $20,000 for the future cost of physiotherapy. The following paragraphs of ground 3 of the appeal by the appellant attack those assessments:
"(e)His Honour erred in awarding the Respondent $20,000.00 for future consultations with a psychologist. The award was not based on a finding that would justify the amount, and was inconsistent with the evidence as to likely future psychological costs.
(f)His Honour erred in awarding the Respondent $20,000.00 for future consultations with a physiotherapist. The award was not based on a finding that would justify the amount, and was inconsistent with the evidence as to likely future physiotherapy costs."
Very little was said by the learned trial judge in the reasons for judgment, to establish how the respective assessments of $20,000 were reached. His Honour noted that the respondent's claims were particularised in his counsel's written closing submissions and that the calculations of the claims were formulated on the basis of the 7 per cent discount tables to the assumed date of the respondent's death. His Honour considered the method of calculation to be generally appropriate but at best gave only an approximate value. The respective sums of $20,000 were then stated as the assessed figures although subsequently the learned trial judge discounted each of those figures by 10 per cent "for contingencies", so that what was actually awarded for physiotherapy and consultations with psychologists was in each case $18,000 and not $20,000 as asserted by the grounds of appeal.
What counsel's written closing submissions relevantly stated was:
"37Physiotherapy is likely to continue at a level of three to four times per year for (say) five weeks at time, two visits per week; see Dr Blakney at p236. Again, this is reasonable. At the agreed cost, this is a range between $15,472 and $20,628.
38The expected and reasonable continued level of psychological consultations is say eight per year; see Mr Fourez at p403. At the agreed cost discounted to death this amounts to $22,405."
It can be seen that counsel submitted that on the evidence it was likely that physiotherapy would continue at a level of three or four courses per year, each course amounting to two visits per week for five weeks at a time. The range of $15,472 and $20,628 was the appropriate figure for assessment which flowed from that, depending on whether there were three courses a year or four courses a year. The learned trial judge allowed $20,000 which was slightly below the higher figure, and it is therefore reasonable to assume that his Honour found and made the assessment upon the basis that the respondent would virtually require four courses each year, each course amounting to two visits per week for five weeks at a time. No reasons were given by his Honour for reaching that conclusion.
There was very little evidence about the continuing need for physiotherapy. There was precise evidence, in the form of a lengthy report from a physiotherapist, Anitra Wilson, which revealed the dates upon which the respondent received physiotherapy between the date of the accident and November 1995, but there was no detail for the period after then. Evidence in chief was given by Dr Blakney, the respondent's general practitioner, that he understood that the respondent was not undergoing physiotherapy at the time of the trial, but that was contrary to the evidence of the respondent to which I will refer in due course. It was Dr Blakney's unchallenged opinion that the respondent would need physiotherapy "probably several times a year" in the form of courses of treatment of variable span, variable depending on how he responded to the treatment at the time. He was then asked: "So when you say several, three or four?" He answered: "Possibly, yes." He continued by saying that the period of each course of physiotherapy would depend on the severity of the symptoms, but Dr Blakney guessed "the average sort of physio span with these types of things would probably vary between four and sometimes up to ten weeks … probably twice a week". In the course of his examination in chief on 20 February 1998, the respondent said that physiotherapy was no cure but it tended to relieve a lot of the pressure on muscles for a short period. He was asked how often he was having physiotherapy "now" and he said: "I've just started physio again. I have a break from physio every now and again. I will possibly go for six weeks or so, two or three times a week, and then I might have three weeks or four weeks off or whatever." He said that "now" he had restarted he would probably go two to three times a week. Facts agreed by the parties included that a physiotherapy attendance cost $38 and in addition the travelling cost to the respondent was $2.88 for each attendance, a total cost to the respondent of $40.88 per attendance.
I have referred to what I believe is all of the relevant evidence concerning the future cost of physiotherapy. It is the appellant's submission that the evidence did not justify the assessed sum. However that is plainly wrong. On the basis of the evidence, $18,000 was a conservative award. The starting point for its calculation was a little less than four courses each year, a course involving about five weeks of two treatments each week. The unchallenged evidence of Dr Blakney was that each course could be expected to last between four and ten weeks and the evidence of the respondent suggested that a course might last six weeks and involve up to three treatments each week. There is no merit in the appeal against the assessment for the future cost of physiotherapy.
Concerning the future cost of psychological consultations the answer is not as easy, because of the uncertain state of the evidence. The written submissions to the learned trial judge by counsel for the respondent were based on eight consultations each year at an agreed cost of $190 plus agreed travelling expenses of $32, a total agreed cost of $222 per consultation. Based on an agreed multiplier of 656 on the 7 per cent discount table, the calculation to expected death, as put by counsel for the respondent, was $22,405. The learned trial judge awarded $18,000, which equates to approximately 6½ consultations each year until expected death.
The evidence about the number of consultations which might be needed was unsatisfactory. Dr Fourez, in his evidence in chief, said that there had been twenty-two consultations between 1 August 1995 and 9 September 1996, a further consultation in February 1997 and no further consultations in the next twelve months leading to the date of the trial. On being asked how often he expected the respondent would need to see him in the future, Dr Fourez said that it was a difficult question but "assuming nothing changes in his physical status" he said: "I would say that I would not anticipate having to see Mr Eaves for much more than, say, six or twelve sessions a year, maximum, on average." Unfortunately neither counsel or the learned trial judge sought to have the answer clarified. It is arguable that Dr Fourez was merely stating the maximum number of consultations he would expect in any one year but not the minimum. Answering negatively rather than positively also makes the answer difficult to understand. However I am unable to say that it would be erroneous to interpret the answer as meaning that six to twelve consultations each year are anticipated and on that basis, an award equivalent to about 6½ consultations each year could not be said to be erroneous. Although not confident about the matter, because of the uncertainty in the evidence, I conclude that the appellant has failed to show that the learned trial judge was in error when he awarded $18,000 for this item.
Fox v Wood
The remaining ground of the appeal by the appellant is:
"(g)His Honour erred in the manner in which he allowed for the so-called Fox v Wood component of the Respondent's damages, the effect of His Honour's calculations being to not subject the Fox v Wood component to any apportionment for contributory negligence."
The parties agree that the learned trial judge erroneously added to the judgment sum in purported compliance with the principles of Fox v Wood (1981) 148 CLR 438, the sum of $2,754.64 and that accepting that his Honour's assessment of damages was otherwise correct, the judgment sum should therefore have been $362,735.50 and not $365,489.97.
Outcome of the appeal
I would therefore reduce the amount to be awarded for lost future earning capacity from $255,000 to $220,000, set aside the judgment in favour of the respondent in the sum of $365,489.97 and replace it with a judgment in favour of the respondent for $332,985.50 made up as follows:
| Pain, suffering and loss of amenities of life | $40,000.00 |
| Loss of net income ¾ 18 June 1992 to 18 May1998 | $114,476.82 |
| Loss of future earning capacity | $220,000.00 |
| Loss of future superannuation entitlements | $37,000.00 |
| Past medical expenses | $70,617.00 |
| Future healthcare and treatment consultation costs | $50,220.00 |
| Future cost of medication | $19,256.00 |
| Cost of firewood | $7,500.00 |
| Tax paid on workers compensation payments | $18,364.31 |
| TOTAL | $577,434.13 |
| Less 15 per cent for contributory negligence | $86,615.12 |
| TOTAL | $490,819.01 |
| Less workers compensation payments | $157,833.51 |
| TOTAL | $332,985.50 |
File Nos FCA 48/1998
FCA 49/1998
HUON VALLEY COUNCIL v CHRISTOPHER RONALD EAVES
REASONS FOR JUDGMENT FULL COURT
SLICER J
19 February 1999
I have had the advantage of reading, in draft form, the reasons for judgment of my brother Crawford and agree with his reasoning and conclusion. I agree with the order which he proposes.
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